Hon. Clyde Boose Opinion No. v-908. 

County Attorney 

Nolan County Re: Authority of the ComSweetwater, Texas mlssloners~ Court of 

Nolan County to pay 

a salary to or the 

expenses of a Volunteer Parole Officer 

of Nolan County, who 

was appointed and commlsslone~~ by the GovDear Sir: ernor. 

We refer to your recent request for an opinion. 

The question submitted for our consideration Is, ln substance, as follows: 

Does the Commissioners' Court of 

~Nolan County have authority to use the 

County's.funds to pay a salary to or the 

expenses of a Volunteer Parole Officer 

of Nolan County, who was appointed and 

contulssloned by the Governor? 

Before we can answer your question, It must. 

first be deteralned whether there exists In Nolan County 

a public office, the lncumb&nt of which Is offlclally 

known as a Volunteer Parole Offlcer'of Nolan County. If 

no such orflce'~exlsts, it hecesiarlly follows there can 

be no such officer. 

In thls,State public offlcers~are created by 

law and none can exist except by Its sanction. Some offices are created by the Constitution and oth?rsby statutes. 34 Tex.Jur. 326, Public Officers, Sec.5. The 

Legislature Is the department of government ln which rePoses the law-making ower of the people. Terre11 v. 

F 

118 Tex. 237, 1 t S.W.2d 786 (1929). The creation 

an office is peculiarly a legislative matter. Weaver 

v. Commissioners1 Court of Nacoxdoches Count& 13m 

thai an of;lcedcornes Into existence only when created 

~prlnclple 

by law. City of San Antonio v. Coultress, 169 S.W. 917 
Hon. Clyde Boose, page 2 (v-908) 

(Tex.Clv.App.1914). 

Neither the Constitution nor the Legislature 

has created a public office to be filled by a person 

whose official title Is that of a county volunteer parole officer. It Is a well known fact that ln most of 

the counties of this State there Is a board known as 

"volunteer parole board," which Is composed of persons 

laro~n as "volunteer parole officers." So, when we 

speak of the Volunteer Parole Officers of Nolan County, 

or of any other county, the Inference Is that such an 

officer Is a public officer. How these term orlgfnated and came Into colnmon usage are revealed by the hlstory of their origin, as we understand It to be, which 

Is as follows: 

Governor Jas. V. Allred,~du.rlng his adminiStratlon as Governor, 1935-1939, realized that a convict 

released from the penitentiary on parole or condltlonal pardon should be under some supervision upon hls return to the county in which he was convicted or same 

other county of this State to which he was authorized 

to go by the Governor's proclamation releasing him from 

prison. Since the Legislature had made no provision 

whatever for any klnd~ ot such supervlslon, he conceived 

the Idea of requesting one or more reliable private clthens, who were interested In the rehabllltatlon of 

prisoners so released, to voluntarily assume certain 

duties pertaining to such parolees and pardonees ln 

their respective counties, and to whom he could re ulre 

prisoners so released to report ror supervision. 't For 

the purpose of this opinion, It is not necessary to set 

forth other respective duties of the citizen and prlsoner, for they may not have been the same ln all instances,) 

When a citizen advised the Governor of his wllllngness 

to serve In such caaaclty, the Governor notified him 

that he had been appointed a volunteer parole officer of 

the county of his residence. Such officers constituted 

the volunteer parole boards of their respective counties. They have performed splendid services, and It Is 

unfortunate that the Legislature has not given them official status. 

The policy of appointing such parole officers 

established by Governor Allred has been continued by 

his successors in office down to the present time, for 

the same reasons which occasioned Its establishment in 

the first Instance. 
Hon. Clyde Boose, page 3 (v-908) 

We are not Informed whether It has been the 

uniform policy or practice of each Governor to Issue a 

commission to each voluntary parole officer on the form 

used by him for commissioning public officers In actordance with the provisions of Article 3040, V.C.S. Be 

that as it may, the fact that a person was Issued a commission In which he was designated a Volunteer Parole 

Officer of Nolan County, as was done In this Instance, 

would be ineffectual to make that person a public officer unless such an office had been first created by 

law. His status Is that of a prlv&e citizen performing 

certain voluntary duties at the request of the Governor 

for a worthy purpose, and for this he should be highly 

commended by the citizens of this State. Therefore, 

the answer to your question Is controlled by the provisions of the Constitution, statutes, and authorities 

hereinafter cited. 

Section 44, Article III of the donstltutlon, 

provides: "The Legislature shall provide by law for the 

compensation of all officers, servants, agents and publlc ctntractors, not provided for in this Constitution. 

. m . 

In 34 Texas Purlsprudence 512, Public Offlcers, Section 108, It is said: 

"To entitle a person to recover emoluments of an office, he must show that he 

Is an officer de jure, that the office has 

been legally created and Is In existence, 

and that he has been legally placed therein and has a legal right thereto. The statute (Art. 6828) expressly prohibits the payment or allowance of the claim of any person Sor compensation aa an officer, unless 

he has been duly elected or appointed as such 

officer . . . and has q\allfled as such officer according to law. (Emphasis added) 

Section 18 of Article V of the Constitution of 

Texas creates the commlssloners' courts, and confers upon them such powers as are granted by the Constitution 

and laws of this State. Such courts are courts of llmlted jurisdiction, having no authority except such as Is 

expressly or lmplledly conferred by the Constitution and 

statutes. Anderson v. Wood, 137 Tex. 201, 152 S.W.2d 

1084 (1941); 11 Tex. Jur. 563, Counties, Sec. 36. 
Hon. Clyde Booee, page 4 (v-908) 

Section 52, Article III of the Constitution of 

Texas , provides the Legislature shall have.no power to 

authorize any county of the State to lend Its credit OF 

to grant public money or thing of value In aid of, or to 

any Individual, association or corporation whatever. 

Section 3 of Article VIII of the Constitution 

of Texas, reads: 

"Taxes shall be levied and colleced by gener$ laws and for public purposes only. 

In the case of Howard v. Henderson County,116 

S.W.2d 479 (Tex.Clv.App.1938 error ref.) the Court, 

after citing the pertinent p;ovlslons of iectlon 52, 

Article III, and.other provisions of the Constltutlon, 

said: 

"Giving effect to llmltatlon on the 

Legislature to confer power on counties 

and municipal authorities to grant public 

moneys to lndlvlduals, and to make contracts, the courts of this State have unlformly recognized that a commlsslonerst 

court cannot bind the county by ordering 

a claim to be paid, which Is not made a 

charge against the county, or made a contract not within the limits of their power. 

The want of authority 1s jurisdictional; 

its action ir. so doing has no conclusive 

or binding effect, but, on the contrary, 

13 void." 

When a commlrsloner3' court approve3 a claim 

against the county without lawful authority, its action 

Is wholly void. and notwlthstandlnz the fact that such 

unauthorized cialm was voluntarily-approved and paid by 

the county. Cameron County v. Fox, 2 S.W.2d 433 (Comm. 

App.1928), and numerous authorities there cited. 

It necessarily follows from what we have said 

that, in our opinion, your question must be answered In 

the negative. 

SUMMARY 

Public offfces can only be created by 

the Constitution or the Legislature. Terre11 
Clyde Boose, page 5 (v-908) 

118 Tex. 237, 14 S.W.2d 786 (1929); 

Commissioners' Court of Nacog- 

~~p's3~,0~'~'v14~0~i:,~~s~70 

169 S.W. 917 (1914); 34 Tex.Jur. 326, Public 

Officers, Sec. 5. 

Neither the Constitution nor the Legislature has created a county volunteer parole office. The Commlssloners' Court or 

Nolan County has no authority to use county f'unds to pay a salary to or the expenses 

or a Volunteer County Parole Officer of Nolan County, who was appointed and comlssloned by the Governor, for the status of 

a person so appointed and commissioned Is 

that OS a private citizen performing certain voluntary duties, upon request of the 

Governor, pertaining to the supervision of 

certain parolees and pardonees. Tex. Const., 

Art. III, gets. 44, 52; Art. V, Sec. 18; 

Art. VIII, Sec. 3; Anderson v. Wood, 137 

Tex 201, 152 S.W.2d 1084 (1941); Howard v. 

Henderson County 116 S.W.2d 999 (Tex.. 

App.1938, error gef.); Cameron County v. 

Fox, 2 SiW.2d 433 ($oinm.App.l928J; Ar 

mo, 6829, v.c.s.; 34 Tex.Jur.512, P% 

llc Officers, Sec. 108. 

Yours very truly, 

ATTORNRYGRNRRALOF TEXAS 

BWR:eb:mw BY 

/3---wBruce W. Bryant 

Assistant 

ATTORNgY GENERAL